Section 436.350

Title XXVIII CONTRACTS AND CONTRACTUAL RELATIONS

Chapter 436

Effective - 28 Aug 2005   

  436.350.  Definitions. — As used in sections 436.350 to 436.365, unless the context clearly requires otherwise, the following terms shall mean:

  (1)  "Action", any civil lawsuit, action, or proceeding, in contract or tort, or otherwise, for damages or indemnity, brought to assert a claim, whether by petition, complaint, counterclaim, or cross-claim, for damage to, diminution in the value of, or the loss of use of real or personal property caused by an alleged construction defect.  Action does not include any claim originating in small claims court, or any civil action in tort alleging personal injury or wrongful death to a person or persons resulting from an alleged construction defect;

  (2)  "Association":

  (a)  An association or unit owners' association as defined and provided for in subdivision (3) of section 448.1-103;

  (b)  A homeowners' association, including but not limited to a nonprofit corporation or unincorporated association of homeowners created pursuant to a declaration to own and operate portions of a planned community or other residential subdivision and which has the power under the declaration to assess association members to pay the costs and expenses incurred in the performance of the association's obligations under the declaration, or tenants-in-common with respect to the ownership of common areas or amenities of a planned community or other residential subdivision; or

  (c)  Any cooperative form of ownership of multiunit housing;

  (3)  "Claimant", a homeowner or association which asserts a claim against a contractor concerning an alleged construction defect;

  (4)  "Construction defect", for the purposes of sections 436.350 to 436.365, a deficiency in, or a deficiency arising from, any of the following:

  (a)  Defective material, products, or components used in new residential construction or from a substantial remodel;

  (b)  Violation of the applicable codes and ordinances, including those ordinances which regulate zoning and the subdivision of land, in effect at the time of the commencement of construction of residential improvements, or as to a substantive remodel, at the commencement of such substantial remodel; provided however, that any matter that is in compliance with applicable codes and ordinances, including without limitation those ordinances which regulate zoning and the subdivision of land, in effect at the commencement of construction of residential improvements, or to a substantial remodel as the case may be, shall conclusively establish that such matter is not, nor shall it be deemed or construed to be a construction defect, unless a construction defect as to such matter is established because of defective material, products, or components used in new residential construction or in a substantial remodel;

  (c)  Failure to construct residential improvements in accordance with accepted trade standards for good and workmanlike construction at the time of construction.  Compliance with the applicable codes and ordinances, including without limitation those ordinances which regulate zoning and the subdivision of land, in effect at the commencement of construction, or of a substantial remodeling as the case may be, shall conclusively establish construction in accordance with accepted trade standards for good and workmanlike construction, with respect to all matters specified in those codes;

  (d)  Failure to construct residential improvements in accordance with the agreement between the contractor and the claimant, notwithstanding anything to the contrary in this subdivision;

  (5)  "Contractor", any person, company, firm, partnership, corporation, association, or other entity that is engaged in the business of designing, developing, constructing, or substantially remodeling residences;

  (6)  "Homeowner", any person, company, firm, partnership, corporation, association, or other entity who contracts with a contractor for the construction, substantial remodel of a residence, or the sale of a residence constructed by such contractor.  Homeowner also includes a subsequent purchaser of a residence from any homeowner;

  (7)  "Residence", a single-family house, duplex, triplex, quadraplex, or a unit in a multiunit residential structure in which title to each individual unit is transferred to the owner under a condominium or cooperative system, and shall include common areas and common elements as defined in subdivision (4) of section 448.1-103. Residence shall include the land and improvements to land under and around the house, unit, or structure.  Residence shall not include a manufactured home as defined in section 700.010;

  (8)  "Serve" or "service", personal service to the person intended to be notified or mailing to the last known address of such person;

  (9)  "Substantial remodel", a remodel of a residence, for which the total cost exceeds one-half of the assessed value of the residence for property tax purposes at the time the contract for the remodel work was made.

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(L. 2005 S.B. 168 § 431.300)